One legal concept that often confuses individuals alleging employment discrimination is “administrative exhaustion.” This refers to the unique nature of federal and state laws governing discrimination claims. Under federal law, an employee must first file a charge against an employer with the U.S. Equal Employment Opportunity Commission (EEOC) before pursuing a private discrimination lawsuit. The EEOC charge gives the government an opportunity to investigate and take action on its own. When the government declines to act, it will notify the employee and give him or her a “Notice of Right to Sue.”
Second Circuit Shifts Burden From Employees to Employers
Unfortunately many workers, particularly those who represent themselves without a qualified New York employment attorney, try to file a lawsuit directly without first going to the EEOC or the appropriate state or city agency. This often leads courts to dismiss perfectly viable discrimination claims due to a lack of administrative exhaustion.
There is some good news. The U.S. Second Circuit Court of Appeals, which has federal appellate jurisdiction over New York, recently held the legal burden is on the employer, not the employee, to allege and prove administrative exhaustion. This small-but-important change in how the law is enforced brings New York and the other Second Circuit states in line with the majority of the country.
In this particular case, the plaintiff is a former civil servant from Connecticut. He worked for a local public works department for more than two decades. The plaintiff's lawsuit alleges that over a period of two years, he observed a pattern of serious safety violations in his workplace. He took photographs of the alleged violations and showed them to his supervisor.
The plaintiff, who is an African-American, said that his white supervisor refused to address the safety violations and ordered him to “go back to work” in this “dangerous” environment. The plaintiff then filed a complaint with the Occupational Safety and Health Administration (OSHA), an agency of the U.S. Department of Labor that supervises workplace safety. In response to filing this complaint–a protected activity under federal law–the plaintiff said the supervisor demoted him and denied him overtime pay. After the plaintiff filed a second complaint with OSHA, he said he was fired.
The plaintiff sued his now-former employer in federal court for illegal retaliation and race discrimination. The trial judge, acting on her own initiative, dismissed the complaint due to the plaintiff's lack of administrative exhaustion. More precisely, the judge said the plaintiff “failed to plead facts” in his complaint demonstrating he filed a discrimination charge with the EEOC before pursuing his lawsuit.
The Second Circuit held the trial judge's dismissal was premature. Noting that the Court had not previously considered this issue, the Second Circuit said it was now holding that administrative exhaustion is an “affirmative defense” rather than a pleading requirement. In plain English, the burden is on the employer, not the employee, to raise lack of administrative exhaustion. So the plaintiff's failure to address the issue in his complaint did not warrant automatic dismissal.
Speak With a New York employment attorney Today
If you have been wrongfully terminated from your job, you are understandably angry and want to take immediate action. You should never go into court unprepared. The first thing you should do is contact an experienced New York employment discrimination lawyer who can explain the process to you and make sure your case is not dismissed on a technicality. Contact the Law Offices of Mahir S. Nisar at 646.760.6493 to schedule a consultation today.